SC orders fixed tenure for bureaucrats & Suggests that the bureaucrats should
not act on verbal orders given by politicians
The Supreme Court on Thursday
directed the Centre and the States to set up a Civil Services Board (CSB) for
the management of transfers, postings, inquiries, process of promotion, reward,
punishment and disciplinary matters and recommends fixed tenure for
bureaucrats.
A Bench of Justices K.S.
Radhakrishnan and Pinaki Chandra Ghose, giving a series of directions while
disposing of a public interest writ petition — filed by former Union Cabinet
Secretary T.S.R. Subramanian; former CECs T.S. Krishnamurthy and N.
Gopalaswami; former Indian Ambassador to the U.S. Abid Hussain; former CBI
Director Joginder Singh; former Manipur Governor Ved Prakash Marwah and 77
others — also said bureaucrats should not act on verbal orders given by
politicians and suggested a fixed tenure for them.
THE JUDGMENT
IN THE SUPREME COURT OF
INDIA
CIVIL ORIGINAL
JURISDICTION
WRIT PETITION (CIVIL) NO.82
OF 2011
T.S.R.
Subramanian & Ors. …
Petitioners
Versus
Union of India
& Ors. …
Respondents
WITH
WRIT PETITION (CIVIL)
NO.234 OF 2011
J U D G M E N T
K.S.
Radhakrishnan, J.
1. Article 32 of the Constitution of
India has been
invoked by few
eminent retired
civil servants highlighting
the necessity of
various
reforms for
preservation of integrity, fearlessness
and independence of
civil servants
at the Centre and State levels in
the country. Prayers
made in this
writ petition are based on various reports and
recommendations
made by
several Committees appointed
for improving the
public
administration. On the basis of various
reports, following reliefs
are
sought in the
writ petition :-
(i) Issue a writ in the nature of mandamus or
any other appropriate writ,
order
or direction requiring
the Respondents to
create an
“independent” Civil Service Board or
Commission both at the Centre and
the State based on recommendations by the
Hota Committee, 2004 (para
5.09, para 5.11, Main Recommendations
No.38); the 2nd Administrative
Reforms Commission 2008 (10th Report,
para 9.8); the statement adopted
at the Conference of Chief
Ministers on Effective
and Responsive
Administration, 1997;
(ii) Issue a writ in the nature of mandamus or any
other appropriate writ,
order or direction requiring the
respondents to fixed tenure for civil
servants ensuring stability based on
recommendations by Jha Commission
1986 (para 7.2); Central Staffing
Scheme, 1996 (para
17.01, para
17.02,
para 17.03, para
17.12), the 2nd
Administrative Reforms
Commission (10th
Report, para 8.7,
para 9.8, para
17.5), Hota
Committee Report, 2004 (Main
Recommendations No.39);
(iii) Issue a
writ in the nature of mandamus or any other appropriate writ,
order or direction requiring the
respondents to mandate
that every
civil
servant formally record
all such instructions/directions/
orders/suggestions which
he/she receives, not
only from his/her
administrative superiors
but also from
political authorities,
legislators, commercial
and business interests
and other
persons/quarters having interest,
wielding influence or purporting to
represent those in authority based
on the
principles recognized by
Rule 3(3)(ii)(iii) of the All India
Service Conduct Rules, 1968 and as
implicitly recognized by the Santhanam
Committee Report, 1962 (Section
6, sub-para 33[iii].
2. This Court, considering the importance of
the matter, issued
notice
to various
State Governments and the Union Territories so
as to ascertain
their views on
the various issues raised in this case.
Most of the States
have filed
detailed counter affidavits explaining their
stand with regard
to the reliefs
prayed for in this writ petition.
3. Shri K.K. Venugopal, learned senior
counsel appearing for
the writ
petitioners, referred
elaborately to the
above-mentioned reports and
highlighted the
necessity of the creation of a Civil
Service Board (for
short ‘CSB’),
both at
the Centre and
State level, with
a degree of
independence so
that it can make
recommendations on all
transfers and
postings
without sacrificing the
executive freedom of
the Government.
Learned senior
counsel pointed out that such CSB shall function in
a bare
advisory
capacity and its recommendations will not impose any constraint on
the independence
of the political
authority to effect
postings and
transfers,
including premature transfers.
Learned senior counsel
also
highlighted the
necessity for providing a fixed tenure
for civil servants
ensuring
stability which is
highly necessary for
implementing various
programmes
which will have social and
economic impact on
the society.
Learned senior
counsel also highlighted
the reasons for
recoding of
instructions,
directions and orders by the civil servants so that they can
function independently
and the possibility
of arbitrary and
illegal
decisions could
be avoided.
4. Mr. Paras Kuhad, learned
ASG appearing for
the Union of
India,
opposed in
principle prayer for setting up of independent CSB at the Centre
and the
State levels, which,
according to the
learned ASG, would
be
interfering
with the governmental functions.
Learned ASG also
submitted
that any
mechanism within the governmental structure could be
thought of,
but involvement
of any person, howsoever high he may be, who is not part of
the Centre or
the State Government, would not be
advisable, especially in
the absence of
any such provision in the Constitution or the
laws made by
Centre and the
State Governments. Learned ASG
also submitted that
based
on the 2nd
Administrative Reforms Committee (ARC),
a draft Bill
entitled
“Civil Services
Performance Standards and
Accountability Bill, 2010”
was
provided incorporating
certain recommendations in the above-mentioned
reports. Further, it was pointed out that the draft
Cabinet Note for the
introduction of
the said Bill in the Parliament is
under consideration of
the Central
Government. Further, it was also
submitted that for fixing the
minimum tenures
of cadre post in the
Indian Administrative Service
was
initiated in
November, 2006 by the Department
of Personnel &
Training.
Cadre
controlling authorities of the
Indian Police Service
and Indian
Foreign Service
were also requested to take necessary follow-up
action for
fixing the
minimum tenures in the cadre post for the Indian Police
Service
and Indian
Foreign Service. During the
process of consultation,
it was
pointed out
that comments of the State
Governments were sought
on the
proposal of
fixing minimum tenure of posting of IAS
Officers. 13 State
Governments
agreed with the proposal, while some States did not agree. The
matter was
further discussed in
the meeting with
the Chief
Secretary/Principal
Secretaries of the States concerned on
31.5.2007 and
again on
4.7.2008 in Delhi. Notification
providing for two years minimum
tenure for IAS
posting having been
issued for 13
States/Joint Cadres.
Reference was
also made to study report of
“Centre for Good
Governance”,
Hyderabad and
it was stated that the same is under
consideration with the
Central Government.
With regard to the prayer
for recording of
instructions/directions,
etc., it was pointed out that the requirements
are
provided under
the All India Service Conduct Rules.
5. Learned counsels appearing for the
State Governments and
the Union
Territories
have also placed their stand on various reliefs
sought for in
this writ
petition. Learned Standing counsel
appearing for the
State of
Uttar
Pradesh submitted that
the State has
already established Civil
Service Boards
in terms of the
Government orders dated
24.12.2001 and
19.5.2007,
which is meant to operate with respect
to IAS and
Provisional
Civil Services,
Indian Police Services and Provisional Police
Services and
for Indian
Forest Services and their feeder services.
Over and above, the
State has
also formulated transfer
policy dated 15.5.2008.
Learned
counsel
appearing for the State of Maharashtra also made reference
to the
Maharashtra
Government Servants Regulations of Transfers and Prevention
of
Delay in
Discharge of Official Duties Act, 2005 and submitted that the
Act
provided for
transfer of Government servants and prevention
of delay in
discharge of
official duties.
6. Reliefs prayed for in this writ
petition are based
on the Hotta
Committee Report,
2004, 2nd Administrative Reforms
Commission (10th
Report), 2008.
2nd Administrative Service Commission
(15th Report), the
Report of the
Committee on Prevention of Corruption,
Santhanam Committee
Report,
etc. We have gone through those reports
in detail.
A. CIVIL
SERVICE BOARD (CSB):
7. The Government of India on 3rd February,
2004, appointed the Hota
Committee to
examine the whole gamut of Civil Service reforms and the terms
of reference of
the Committee were as follows :-
“(i)
Making the Civil Service
• responsive and citizen-friendly;
• transparent;
• accountable; and
• ethical
in its (a) actions and (b)
interface with the
people,
(ii)
Making the civil service e-governance friendly.
(iii) Putting a premium on intellectual
growth of civil servants and
on upgrading their domain
knowledge,
(iv)
Protecting the civil service against
wrongful pressure
exerted by
(a)
administrative superiors;
(b)
political executive;
(c)
business interests; and
(d)
other vested interests.
(v)
Changes, if any necessary, in the
various All India
Services
Rules and Central Civil Rules to provide a
statutory
cover to the proposed civil service reforms.
(vi)
Changes in rules governing the disciplinary proceedings
against civil servants to decentralize the process
as
far as practicable, and to make the
disposal of such proceedings
time-bound.
(vii) Any other matter that the Committee may
consider relevant
to the subject of civil service
reforms.”
8. On establishment of Indian Civil Services
Board, the Hota
Committee
made the
following recommendations :-
“5.09 We found that some States complied
with the recommendations of
the
Conference of Chief
Ministers and set
up Civil Services
Boards/Establishment Boards with Chief
Secretary of the State as the
Chairman and other senior officials of
the State as Members. But the
Boards set up by executive order in
different States have failed
to
inspire confidence as more often than
not, they have merely formalized
the wishes of
their Chief Ministers
in matters of
transfer of
officials. We are firmly of the view that
a Civil Services Act has to
be enacted to make the Civil Services Board
/ Establishment Board both
in the States and in the Government of
India statutory in character.
In the proposed set up in the Government
of India, the
Appointments
Committee of the Cabinet will be the
final authority for transfer of
officers under the Central Staffing Scheme.
The same principle
of
fixed tenure should apply to senior
officers, who are not under
the
Central Staffing Scheme, but are working
under the Government of India
for which the Departmental Minister in
charge is the final authority
for transfer. The Chief Minister will
be the final
authority for
transfer of all Group 'A' officers of
State Service and AIS officers
serving in connection with affairs of the
State. If a Chief Minister
does not agree with the recommendations
of the Civil Services Board/
Establishment Board, he will have to
record his reasons in writing. An
officer transferred before his normal
tenure even under orders of the
Chief Minister can agitate the matter
before a three-member Ombudsman.
The Chairperson of the Ombudsman will be
a retired official of proven
honesty and integrity. The other two
members can be on part-time basis
from among serving officers. In
all such premature
transfers the
Ombudsman shall send a report to the
Governor of the State, who shall
cause it to be laid in an Annual Report
before the State Legislature.
The Ombudsman may also pay damages to the
officer so transferred
to
compensate him for dislocation and mental
agony caused due
to such
transfer. We are conscious
that we are
recommending a statutory
barrier to frequent transfer of senior
officials but the matter
has
come to such a pass that it requires
a statutory remedy.
We also
clarify that the Chief Minister as the
highest political executive has
the final powers to order transfer of an
officer before his tenure is
over.
5.10 We are also of the
opinion that postings
of all Group
'B'
officers must be done by the Head of the
Department in a State and the
same tenure rule shall be given a
statutory backing. We were advised
by some witnesses that only the Chief
Minister's orders for transfer
should be taken in case of Group 'A'
officers / officers of All India
Services and no Minister of a State
should have any powers to order a
transfer or approve a proposal for
transfer of any official either of
any State Service or of the All India
Service. We agree with the view,
as in our opinion owing to reasons of
political expediency or even due
to unwholesome reasons, Ministers in
States often are not able to make
proper use of
the power vested
in them for
transfer of their
departmental officers. If a Minister has
cogent reasons to ask for
transfer of an official before he
completes his tenure, he will move
the Civil Services Board to be set up
under the new Civil Services Act
and the Civil Services Board, with its
views on report of inquiry by a
designated officer, shall submit the case
to the Chief Minister
for
final orders. Thus in a State Government,
a Minister's proposal
for
transfer of any officer of
Group 'A'/Group 'B'
will be formally
decided by the Chief Minister of the
State.
5.11 In our opinion, Civil Services
Boards must be
set up in all
States on similar lines as at the Centre.
The Central Act should have
a provision to enable the
States to adopt
the law and
make it
applicable in the States, without going
through the long process
of
drafting a new law and getting it passed
in the Legislature. The Civil
Services Board in a State
- chaired by
the Chief Secretary
and
comprising senior officers - shall
perform the functions relating to
transfer, empanelment, promotion, and
deputation of officers performed
by the Establishment Board of Government
of India/Special Committee of
Secretaries of Government of India, both
of which are chaired by the
Cabinet Secretary. Under Article 309 of
the Constitution, Parliament
may also enact a Civil Services Act
setting up a Civil Services Board
for the Union Government
which will perform
the functions being
performed at present by the Establishment
Board presided over by the
Cabinet Secretary. The Civil
Services Act may
also provide for a
Special Committee of
Secretaries to prepare
panel of names
for
appointment for posts of Additional Secretaries
and Secretaries to
Government of India. Under the
new Civil Services
Act, a Cabinet
Minister/Minister of State with
independent charge in Government
of
India may be given a time limit to
accept/send back proposals for the
Establishment Board
regarding posting of
officers with his
observations. In any particular case, if
the Establishment Board after
giving the views of the Minister in
charge its utmost
consideration
does not change its original
recommendation, the Cabinet Secretary may
send proposals of the Establishment
Board with observations
of the
Minister in charge through the Home
Minister, a Member of the ACC to
the Prime Minister, who heads the ACC for
a final decision.
5.12 Inter alia, a Civil Services Board
of a State shall also perform
functions of recommending officers of
All India Service/Group
'A1
service of the State for transfer to
different posts under the State
Government. It would be expedient before
an officer is sought to be
transferred in the public interest when
he has not
completed his
tenure, that an administrative inquiry of
a summary nature is held to
ascertain if the transfer is justified as
a matter of public policy.
The administrative inquiry will
be conducted as
expeditiously as
possible by a designated officer
nominated by the
Civil Services
Board. In appropriate cases, the Civil
Services Board may also direct
the officer to proceed on leave on full
pay and allowances till
the
administrative inquiry is over and a
decision is taken regarding his
transfer. The designated officer
to conduct the
inquiry will be
ordinarily the
Reporting Officer of
the officer sought
to be
transferred. The Civil Services Board
on receipt of
the report of
inquiry of the designated officer shall
advise the Chief
Minister
regarding justification for transfer of the
officer in the
public
interest before his normal
tenure is over.
Ordinarily the Chief
Minister is expected to agree with the
recommendations of the
Civil
Services Board as transfer of an official
is a routine administrative
matter on which a Civil Services Board
must have a decisive role. But
if the Chief Minister does not agree with
the Civil Services Board and
orders transfer of an official before his
tenure is over, he may have
to record in writing reasons for such
transfer. If the
official is
transferred before his tenure without
adequate justification, he will
have the right to approach a three member
Civil Service Ombudsman set
up
for the purpose.
Recommendation 38: In the proposed Civil Service law, the
highest
political executive shall continue to be
the final authority to order
transfer of any officer before his tenure
is over;
but he will be
expected to give due consideration
to Report of
the Administrative
Inquiry/views of the
Civil Service Board/Establishment Board
and
record reasons on the need for premature
transfer of an officer. It is
reiterated that the political executive
shall have the final authority
to transfer an officer at any stage in
the public interest. An officer
aggrieved by order of premature transfer
can agitate the matter before
a three-Member Ombudsman, who may,
where suitable, award
monetary
compensation to
the aggrieved officer.
The constitution of the
Ombudsman will be the same as the
Ombudsman proposed for the Disputes
Redressal
Council as at
para 6.19 of
this Report. The
President/Governor shall receive reports
from the Ombudsman and shall
lay
an Annual Report
on such transfers
on the table
of the
Legislature. There should be a suitable
provision in the law to enable
States to adopt it and make it applicable
in the States without going
through the long process of drafting a
law and get it passed in the
Legislature. {para 5.03 to 5.10)”
9. The 2nd Administrative Reforms Commission
was set up by the President
reflecting the
Resolution dated 31st August, 2005 passed by the Government
of India. The Commission was set up to
suggest measures to
achieve a
preemptive responsible, accountable, sustainable and
effective
administration
for the country at all levels of the government. The tenure
of the
Committee was extended from time to time and the Committee submitted
its report in
the year 2008. On the question of the
setting up of the
independent
CSB, the Committee has made the following recommendations :
“9.7.1 The Commission suggests that an
independent ‘Authority’ should
deal with matters of assignment
of domains, preparing
panels for
posting of officers at the level of SAG
and above, fixing tenures for
various posts, deciding on posts which
could be advertised for lateral
entry etc. As this Authority would be
performing the above-mentioned
crucial tasks, it would be necessary
to ensure its
independence by
giving it a statutory backing and
stipulating that it should be headed
by an eminent person with experience of
public affairs to be appointed
by
the Prime Minister
in consultation with
the Leader of the
Opposition in the Lok Sabha. The Authority should have
a full time
Member-Secretary of the rank of Secretary
to Government of India, and
persons of eminence in public life and
professionals with acknowledged
contributions to society as Members of
the Authority. This Authority,
to be named as
the Central Civil
Services Authority, should
be
constituted under the proposed Civil
Services Act. As the constitution
of the Central Civil Services Authority
under a new law may take some
time,
the said Authority
may be constituted,
initially, under
executive orders.”
10. Para 9.8.e also refers to the
composition of the
Committee which
reads as
follows :-
“9.8.e. A Central Civil Services
Authority should be constituted under
the proposed Civil Services Bill. The
Central Civil Services Authority
shall be a five-member body consisting
of the
Chairperson and four
members (including the member-secretary).
The Authority should have a
full time Member-Secretary of the rank of
Secretary to Government of
India. The Chairperson and members of the
Authority should be persons
of
eminence in public
life and professionals
with acknowledged
contributions to society. The Chairperson
and members of the Authority
shall be appointed by the
President on the
recommendations of a
Committee consisting of the Prime Minister
and the Leader
of the
Opposition in the Lok Sabha.
(Explanation:- Where the Leader of the
Opposition in the Lok Sabha has
not been recognized as such, the Leader
of the single largest group in
the Opposition in the Lok Sabha shall be
deemed to be the Leader
of
the Opposition).”
11. The Second Administrative Reforms Commission
Fifteenth Report (April
2009) has also
made various suggestions in order
to provide legislative
backing to
these measures, the Commission has
recommended enactment of a
Civil Services
Law which will cover all personnel holding civil posts under
the Union. The Commission recommended for the
constitution of a
Central
Civil Service
Authority, among other things, which reads as follows:
“VIII.
Constitution of the Central Civil Services Authority:
i. The Central Government shall, by
notification in the
Official
Gazette, constitute a body to
be known
as the Central
Civil
Services Authority to exercise the powers
conferred on, and to
perform the functions assigned to
it, under this Act.
ii. The Central Civil Services Authority
shall be a five-member body
consisting of the Chairperson and
four members (including
the
member-secretary). The Authority should
have a full time Member-
Secretary of the rank of Secretary
to Government of India. The
Chairperson and members of the
Authority should be persons
of
eminence in public life
and professionals with
acknowledged
contributions to society. The
Chairperson and members
of the
Authority shall
be appointed by
the President on
the
recommendations of a Committee
consisting of the Prime Minister
and the Leader of the Opposition in
the Lok Sabha.
(Explanation:- Where the Leader of the
Opposition in the Lok Sabha has
not been recognized as such, the Leader
of the single largest group in
the opposition in the Lok Sabha shall be
deemed to be the Leader
of
the Opposition).
2.4.2.5 Subsequently, in its Report
on “Refurbishing of
Personnel
Administration” (the
Tenth Report), the
Commission suggested a
detailed procedure for placement of officers
at the
middle and top management levels in the
Union Government. It calls for
the constitution of a Central Civil
Service Authority by law,
which
will be an independent five member
body consisting of
persons of
eminence
in public life
and professionals with
acknowledged
contributions to Society. This Authority
will be
empowered to deal
with a large number of
issues concerning civil
services such as
assignment of domain to officers,
preparing panels for posting at the
levels of
Joint Secretary and
above, fixing tenures
for senior
assignments and such other matters that
may be referred to it by the
Union Government. The Commission is of
the view that there should be a
similar Civil Services law and a State
Civil Services Authority
for
each State. The mandate and functions of
the State Body would largely
coincide with those prescribed under the
proposed Union Civil Services
Law. This Authority should deal with
issues of appointment and tenure
of higher officials of all ranks in
the State Governments
including
the Chief Secretary, Principal
Secretaries, Engineer-in-Chiefs and the
Principal Chief Conservator of Forests.
However, till the
time the
proposed law is enacted and the
State Civil Service
Authority is
constituted, recommendations made
at para 2.14.2.5
above may be
immediately adopted by all the State
Governments.
2.4.2.6
Recommendations:
a)
After enactment of the State Civil Services Law on the lines of
the proposed Union enactment, the
proposed State Civil Service
Authority should deal with
matters concerning appointment
and
tenure of senior officers of all
ranks in the State Governments
(including the Chief Secretary,
Principal Secretaries, Engineer-
in-Chiefs, other Agency Heads and
Principal Chief Conservator of
Forests).
b)
Till the time that
such an Authority
is constituted, the
following mechanism may be adopted
for appointment of the Chief
Secretary and Principal Conservator
of Forests in the States:-
•
There should be a collegiums to recommend a panel of names to
the Chief Minister/Cabinet for
these two posts.
For the
post of Chief Secretary, this
collegium may consist of (a)
a Minister nominated by the
Chief Minister, (b) the Leader
of the Opposition in the State
Legislative Assembly and (c)
the incumbent Chief Secretary.
For the
selection to the
post of
Principal Chief Conservator
of Forests the
collegiums may consist of
(a) The
Minister In-charge of
Forests, (b)
the leader of
Opposition in the
State
Legislative Assembly and (c)
the Chief Secretary.
•
There should be a fixed tenure of atleast two
years for
both these posts.
• The
selection for the
post of Chief
Secretary and
Principal Chief Conservator of
Forests should be widened to
include all officers above a
specified seniority (e.g. 30
years). All
officers with a
eniority higher than
a
prescribed limit should be
eligible to be a part
of the
panel.
c)
As regards the appointment and tenure of the Director General of
Police, the recommendations made by
the Commission in its Report
on “Public Order” at para 5.2.3.7
should be implemented.”
12. We have elaborately referred to the Report
of the Hota
Committee,
Report of the
2nd Administrative Commission,
2008-2009, which highlighted
the necessity
of creation of an independent CSB at the
Centre as well
as
the State
level.
B. FIXED
TENURE:
13. Various
Committees have also
recommended and highlighted
the
necessity of
providing fixed tenure for a civil
servant so as
to ensure
stability and
efficiency of administration. The Central
Staffing Scheme,
1996,
highlighted the necessity of a fixed tenure to provide certain degree
of stability to
the administration. Reference in this regard may be made to
paras 17.01,
17.02, 17.03, 17.12 and 17.13
and the same
are extracted
hereinbelow for
easy reference :
“17.01 The fixed tenure of deputation
of posting under
the Central
Government is the heart of
the Central Staffing
Scheme. Rotation
between the Centre and the
States, Central Ministries
and parent
cadres, and headquarters and the field,
provide a certain degree
of
pragmatism to policy formulation and
programme implementation from the
Central Ministries. Based on the
experience gained so far, the periods
of tenure at the different levels have
been prescribed as under:-
i
Under Secretary 3 years
ii
Deputy Secretary 4 years
iii. Director 5 years
iv. Joint Secretary 5 years
17.02 An officer holding the post of
Joint Secretary or
equivalent,
when appointed to a post under the
Government of India at the level of
Additional Secretary, would have a tenure
of 3 years from the date of
appointment as Additional Secretary
subject to a minimum of 5
years
and maximum of 7 years of combined tenure
as Joint Secretary.
Additional Secretary. Where an officer
remains on leave (either from
the Centre or from his Cadre authority or
both) on the expiry of his
tenure
as Joint Secretary
till his appointment
as Additional
Secretary, the leave period shall be counted
as tenure deputation.
Additional Secretary 4 years, except
for cases covered
under the
previous heading.
Secretary No fixed tenure.
17.03 Every officer shall revert at the
end of his tenure as indicated
above on the exact date
of his completing
his tenure. He
will,
however, have a choice to revert to his
cadre on the 31st May previous
to the date of the end of his tenure in
case personal grounds such as
children's education etc., necessitate
such reversion. No
extension
after completion of the full tenure would
be allowed.
17.12 (a) Officers of the Indian Foreign
Service appointed to
posts
under the Central Staffing Scheme would
have a tenure of three years.
(b) They shall not normally be relieved,
except with the approval of
the appointments Committee of the Cabinet
from a Central
Staffing
Scheme post before their tenure.
17.13
No lateral shifts of officers
from one Ministry/I)eptt. to
another will normally be considered.
However, in the case of Private
Secretary to Ministers the policy
followed would be :-
(a) The redeployment of a Private
Secretary in the same
Ministry/Department as Deputy Secretary
or Director is discouraged.
(b)
The Private Secretary (to Minister) who has been empanelled for
holding post of Joint Secretary at the
Centre should also
not be
considered for relocation in the same
Ministry/Deptt. and the officer
should be posted to some other
Ministry/Deptt.”
14. The 2nd Administrative Reforms Commission
(10th Report) also
speaks
of the same in
paras 8.5.11, 8.5.12, 8.5.14, 8.7 (e)-
(g), 9.8(e)-(g) and
17.5(VIII) and
the same are extracted hereinbelow for easy reference :
“8.5.11.
There appears to be unanimity
on the point
that it is
necessary to give a fixed tenure to a
civil servant in his/her post.
In fact, the Draft Public Services
Bill, 2007 has
stipulated in
Clause 16(e) that
“The Central Government shall fix
a minimum tenure
for cadre
posts, which may be filled on the
basis of
merit, suitability
and experience.”
8.5.12
In Clause 22,
the Bill enjoins
the Cadre Controlling
Authorities to
“notify within a period of six
months from the coming into force
of this Act, norms and guidelines
for transfers and postings to
maintain continuity and
predictability in career advancement and
acquisition of necessary skills
and experiences as
well as
promotion of good governance. Transfers
before the specified
tenure should be for valid reasons
to be recorded in
writing.
Provided that the normal tenure of
all public servants shall not
be less than two years.”
8.5.14 The Commission is of the view that
the Central Civil Services
Authority (discussed in detail in Chapter
9) should be charged
with
the responsibility of fixing the tenure
for all civil service
posts
under the Union Government. At present,
the functions of the Authority
are envisaged as advisory under the
provisions of the
Draft Public
Services Bill, 2007. This needs to
be changed, and
so far as the
fixation of tenure is concerned, it is
suggested that the decision of
the Authority should be binding
on the Government.
The Authority
should also be given the responsibility
to monitor postings and place
before Parliament a periodic evaluation
of the actual average tenure
for each post and for the Central
Government as a whole. Establishment
of State
Civil Service Authorities
for the States
with similar
responsibilities needs
to be urgently
taken up by
the State
Governments where tenures are much less
stable. The details
of the
State Civil Services Authorities would be
examined by the Commission
in its Report on ‘State Administration’.
8.7 (e) – (g) Placement at Middle
Management Level
[…….]
e.
The Central Civil Services Authority should be charged with the
responsibility of fixing tenure for
all civil service positions
and
this decision of
the Authority should
be binding on
Government.
f.
Officers from the organized services should not be given
‘non-
field’ assignments in the first 8-10
years of their career.
g.
State Governments should take steps to
constitute State Civil
Services Authorities on the lines of
the Central Civil Services
Authority.
9.8 (e) – (g) Placement at Top Management
Level
[……]
e. A Central Civil Services Authority
should be constituted under the
proposed Civil Services Bill. The Central
Civil Services Authority
shall be a five-member body consisting
of the
Chairperson and four
members (including the member-secretary).
The Authority should have a
full time Member-Secretary of the rank of
Secretary to Government of
India. The Chairperson and members of the
Authority should be persons
of
eminence in public
life and professionals
with acknowledged
contributions to society. The Chairperson
and members of the Authority
shall be appointed by the
President on the
recommendations of a
Committee consisting of the Prime Minister
and the Leader
of the
Opposition in the Lok Sabha.
(Explanation:- Where the Leader of the
Opposition in the Lok Sabha has
not been recognized as such, the Leader
of the single largest group in
the Opposition in the Lok Sabha shall be
deemed to be the Leader
of
the Opposition).
f.
The Central Civil Services Authority should deal with matters
of
assignment of domains to officers,
preparing panels for
posting of
officers at the level of Joint Secretary
and above, fixing tenures for
senior posts, deciding on posts which
could be advertised for lateral
entry and such other matters that
may be referred
to it by the
Government.
g. A similar procedure should be adopted
for filling up vacancies at
SAG level and higher in the central
police agencies. For example, in
the Central Para-Military Forces the
senior positions should be opened
to competition from officers of the CPMFs,
IPS and the Armed
Forces
(including those
completing their Short
Service Commissions).
Similarly for the intelligence agencies
officers from the armed forces
as well as the CPOs with experience
in the field
of intelligence
should be considered for postings at
higher levels in the intelligence
agencies.
17.5
Recommendations
“A new Civil Services Bill may
be drafted. The
following salient
features may be included in the proposed
Bill.
[…….]
VIII. Fixation of Tenures : All senior
posts should have a specified
tenure.
The task of fixing tenures for
various posts may
also be
assigned
to this independent
agency – Central
Civil Services
Authority.”
15. The 2nd Administrative Reforms
Commission (15th Report),
2009 also
speaks of the
same in paras 2.4.1.2 and 2.4.2.4 and the
same is extracted
below for ready
reference:-
“2.4.1.2
In order to provide legislative backing to these
measures,
the Commission has recommended enactment
of a Civil Services Law which
will cover all personnel holding
civil posts under
the Union. As
recommended at paragraph 17.5 of this
Report, the proposed law has the
following salient features :
[…..]
V. Fixation of Tenure. All
senior psots should
have a specified
tenure.
The task of fixing tenures for
various posts may
also be
assigned
to this independent
agency – Central
Civil Services
Authority”.
[…..]
IX.
Functions of the Central Civil Services Authority. The
Central
Authority shall discharge the following
functions :
[…..]
vi.
Fix the tenure for posts at the
‘Senior Management Level’
in
Government of India.
2.4.2.4 For appointments to the posts of
the Chief Secretary and the
Principal Conservator of
Forest, the Commission
communicated the
following interim suggestions to the
Government in December 2007:-
i)
There should be a collegium to recommend a panel of names to the
Chief Minister/ Cabinet for these two
posts. For the post
of Chief
Secretary, this collegiums may consist of
a) a Minister nominated by the Chief
Minister,
b) the Leader of the Opposition in the
State Legislative Assembly and
(c)
the incumbent Chief Secretary. For the
selection to the
post of Principal Chief Conservator
of Forests the
collegiums
may consist of
a) The Minister In-charge of
Forests,
(b) the leader of Opposition in the
State Legislative
Assembly and
(c) the Chief Secretary.
ii)
There should be a fixed tenure of two years for both these
posts.
iii)
The selection for the post
of Chief Secretary
and Principal
Chief Conservator of Forests should be
widened to include all officers
above a
specified seniority (e.g.
30 years). All
officers with
seniority higher than a prescribed limit
should be eligible to be a
part of the panel.”
16. The Hota Committee Report, 2004 also
highlights the same as its main
Recommendation
No.39 which reads as follows :-
“(39). The proposed comprehensive law on the
Civil Services
shall incorporate, inter alia, a
Code of Ethics
and a statutory
minimum tenure in a post to an
officer. Under the proposed law, if an
officer is sought to be transferred
before his tenure, there would be
an expeditious administrative inquiry by
a designated senior officer
to be earmarked for this purpose. This
can be dispensed with if the
transfer is on
promotion/deputation/foreign training.
In all other
cases, the Report of Inquiry with the
views of the
Civil Service
Board/Establishment Board would be put up
to the
Chief Minister if
officer of the All India Services
Service/other civil services work in
the States, or the Appointments
Committee of the
Cabinet if the
officers work under the Central Staffing
Scheme. For the officers of
the other Central Services working in
Ministries/Departments but not
under the Central Staffing Scheme, the
new law will prescribe tenure
with a provision for administrative inquiry
before an officer
is
sought to be transferred except on
specified grounds.”
C. RECORDING OF INSTRUCTIONS AND DIRECTIONS:
17. Petitioners have highlighted the serious
predicant on which the civil
servants are
placed when they
are asked to
implement governmental
decisions, on
oral directions, suggestions, instructions etc.
Much of the
deterioration
of the standards of probity and accountability,
according to
the
Petitioners, can be traced to practice of issuing and acting on
verbal
instructions
or oral
orders which are
not recorded. This
issue was
addressed by
the Santhanam Committee way back in 1962.
Paragraphs 6.20 and
6.21 deal with
those aspects, which are given below for easy reference :
“6.20.
We have already mentioned the existence of ‘contactmen’
and
‘touts’.
Obviously these do not include
genuine representatives of
commercial and industrial firms. In this regard our
recommendations
are :-
i) No official should have any dealings
with a person claiming to
act
on behalf of
a business or
industrial house or an
individual, unless he is properly
accredited, and is approved by
the Department, etc. concerned. Such a procedure will keep out
persons with unsavoury antecedents
or reputation. There should,
of course, be no restriction on the
proprietor or manager etc.
of
the firm or the applicant
himself approaching the
authorities.
ii) Even the accredited representatives
should not be allowed to see
officers below a specified level –
the level being specified in
each organization after taking into
consideration the functions
of the organizations, the volume and
nature of the work to be
attended to, and the structure
of the
organization. However,
care should be taken to limit
permissible contacts to levels at
which the chances of corruption are
considered to be small. This
would often mean that no contact
would be permitted at the level
of subordinate officers.
iii) There should be some system of
keeping some sort of record
of
all interviews granted to accredited
representatives.
iv) There should be a fairly
senior officer designated
in each
Department to which an applicant
etc., may go if his
case is
being unreasonably delayed.
It
is necessary that
a proper procedure
should be devised
in
consultation with the Central Vigilance
Commission for accrediting and
approval by the department. Before granting approval the antecedents
of the person proposed to
be accredited should,
if possible, be
verified. In any case no person who is
not definitely employed by an
established undertaking who will be
responsible for his contact
and
actions should be approved.
6.21.
It is also desirable that officers
belonging to prescribed
categories who have to deal with these
representatives should maintain
a regular diary of all interviews and
discussions with the registered
representatives whether it takes place in
the office or at home. The
general practice should be that such
interviews should be in the
office and if it takes place at home,
reasons should be recorded. Any
business or discussion which is not so
recorded should be deemed to be
irregular conduct, of which serious
notice should be
taken by the
superiors.
18. Further, we also notice the All India
Services (Conduct) Rules, 1968,
which also
states that the directions
of the officials
superior shall
ordinarily be
in writing. Rule 3(3) of the
above-mentioned Rules reads as
follows :-
3(3) (i) No member of the Service shall,
in the
performance of his
official duties, or in the exercise of
powers conferred on him,
act
otherwise
than in his own best judgment to be true
and correct except when he is
acting under the direction of his
official superior.
(ii) The direction of the official
superior shall ordinarily
be in
writing. Where the issue of oral
direction becomes unavoidable,
the
official superior shall confirm it in
writing immediately thereafter.
(iii) A member of the Service who has
received oral direction from his
official superior shall seek confirmation
of the same in writing, as
early as possible and in such case, it
shall be the
duty of the
official superior to confirm the
direction in writing.
Explanation I– A member of the Service
who habitually fails to perform
a task assigned to him within the time
set for the purpose and
with
the quality of performance expected
of him
shall be deemed
to be
lacking in devotion to duty within the
meaning of the sub-rule (1);
Explanation II – Nothing in clause
(i) of sub-rule
(3) shall be
construed
as empowering a
Government servant to
evade his
responsibilities by seeking
instructions from or
approval of, a
superior officer or authority when such
instructions are not necessary
under the scheme of distribution of
powers and responsibilities.”
19. We, in this respect, point out that the response
of certain States
and Union
Territories in the matter of creation
of an independent
CSB,
fixed tenure of
civil servants and recording of
directions, are neither
consistent nor
positive. But generally, they have
welcomed the suggestion
for fixation of
tenure subject to the rider that
in certain exceptional
circumstances,
the State Governments should have the
power to transfer
a
person
prematurely before completion
of the tenure.
Few States have
welcomed the
suggestion that every Civil Servant
should record all
the
instructions
and directions received.
20. Union
and the State
Governments apprehend that
creation of an
independent CSB
or institutional arrangement for
regulating transfers and
postings of
officers would be an intrusion into the
executive function of
the Centre and
State Governments headed by the political
executives, who
are directly
responsible to the people. Further, they
have also taken up a
stand that the
said arrangement would lead to
a dual line
of control,
creating
complexities in managing
administrative functions and
affecting
efficiency of civil servants.
With regard to
frequent transfers of
officers, they
have taken up the stand that there is
already a clear
cut
policy that
except in cases of promotion, in
the interest of
work and
administrative
reasons, transfer and posting will
be done only
after
completion of
three years of tenure. Few States have
issued directions, to
get written
directions in case of oral directions of
Superior Officers in
line with Rule
3(3)(ii)-(iii) of All India Services (Conduct)
Rules, 1968.
21. Chapter XIV of the Constitution of
India deals with
services under
the Union and
the States. Article 309
deals with the
recruitment and
conditions of
service of persons serving the Union
or the State,
which
expressly made
subject to the other provision of the Constitution of India,
In terms of
Article 309 appropriate Legislature,
Parliament or the
State
Legislature is
empowered to legislate, to
regulate the recruitment
and
conditions of
service of persons appointed to public services and post them
in connection
with the affairs of the Union or of any State.
In terms of
the proviso to
Article 309, number of rules have
been made from
time to
time by the
Union and the State Governments and
they govern and
regulate
the public
services in India. Article 310 of the
Constitution provides for
all members of
the civil services of the Union and All India Services to be
held in civil
post at the pleasure of the President and all members of the
civil services
of the State at the pleasure of the Governor
of the State.
Article 311
provides certain safeguards regarding
dismissal, removal or
reduction in
rank of persons employed
in civil capacity.
Article 312
provides
constitution of All India Services.
Articles 318 to 333 deal with
the Union
Public Service Commission
(UPSC) and State
Public Service
Commissions
(PSC). Article 320 stipulates that it
shall be the duty of the
Union and the
State PSCs to conduct the examinations for appointment to the
services of the
Union and services of the State, respectively.
22. UPSC or the State PSCs are to be consulted
in all matters relating to
the method of
recruitment to civil services and
on the principles
to be
followed in
making appointments to civil services and posts
and in making
promotions and
transfers from one service to another.
Of late, the
UPSCs
and PSCs are
being denuded of their powers of
consultation while making
promotions and
transfer from one service to another.
Article 323 lays down
that it shall
be the duty of the UPSC to present annually to
the President
a report of the
work done by the Commission and on receipt
of such report
the President
shall cause a copy thereof
together with the
memorandum,
explaining as
regard the cases, if any, where advice of the
Commission was
not accepted,
the reasons for such non-acceptance, to
be laid before
the
House of
Parliament. Similar provision also exists
for the State
PSCs.
Article
323A authorizes Parliament
to set up
administrative tribunals
regarding
disputes with regard to recruitment
and conditions of
service,
appointed to
public services. Parliament in exercise
of its
powers under
Article 309
enacted the All India Service Act, 1951, which authorizes Union
Government in
consultation with the State Governments,
to make rules
for
the regulations
of conditions of service of persons appointed to All
India
Services.
23. Part V of the Constitution deals with the
Union. Article 53
states
that the
executive power of the Union shall be vested in the President
and
shall be
exercised by him either directly or
through officers subordinate
to him in
accordance with this Constitution.
Article 154 of Chapter VI of
the
Constitution states that the executive
power of the
State shall be
vested with the
Governor and shall be exercisable by him either directly or
through
officers subordinate to him in accordance with
the Constitution.
Article 73 of
the Constitution states that subject to the provisions of the
Constitution
executive power of the Union shall
extend to matters
with
respect to
which Parliament has power to make laws and to
the exercise of
such rights,
authority and jurisdiction, as exercisable
by the Government
of India by
virtue of any treaty or any agreement.
Article 163 of the
Constitution
states that there shall be a Council of
Ministers, the Chief
Minister as the
head to aid and advice the Governor
in exercise of his
functions,
except in so far as he is by or under this Constitution required
to exercise his
functions or any of them with his discretion.
24. The above are the constitutional provisions
which generally deal with
the power of
the executive. The
principles governing the
roles and
responsibilities
of political executive and civil servants,
are therefore,
constitutionally
defined and also based on
the basis of
various rules
framed by the
President and Governor for the
conduct of business
in the
Government. Ministers are responsible to the people in a
democracy because
they are the
elected representatives of the
Parliament as well
as the
General State
Assembly. Civil servants have to be accountable,
of course
to their
political executive but
they have to
function under the
Constitution,
consequently they are also accountable to the people of
this
country.
25. Paragraph 15.1.3 of the report of
the 2nd Administrative Reforms
Committee
(2008) reads as follows:
“A
healthy working relationship
between Ministers and
civil
servants is critical for good governance.
While the principles
governing the roles and
responsibilities of Ministers
and civil
servants are well defined
in political theory,
in the actual
working
of this relationship
this division of
responsibility
becomes blurred with both sides often
encroaching upon the other’s
sphere
of responsibility. In
any democracy, Ministers
are
responsible to the people through
Parliament and therefore
the
civil servants have to be accountable
to the Minister. However, an
impartial civil service is responsible
not only to the government
of the day but to the Constitution of
the land to which they have
taken an oath of loyalty. At
the same time,
implementing the
policies of the duly elected government
is a core function of civil
servants. That is why the division of
responsibility between the
civil servants and ministers needs to
be more clearly defined. A
framework in
which responsibility and
accountability is well
defined would be useful.”
26. Civil servants, as already indicated, have
to function in accordance
with the
Constitution and the laws made by the Parliament. In
the present
political
scenario, the role of civil servants has become very complex
and
onerous. Often they have to take decisions which will
have far reaching
consequences in
the economic and technological
fields. Their decisions
must be
transparent and must be in public interest.
They should be
fully
accountable to
the community they serve. Many of
the recommendations made
by the Hota
Committee, various reports of the 2nd
Administrative Reforms
Commission,
2008 and Santhanam Committee Report
have high-lighted various
lacunae in the
present system which calls for
serious attention by the
political
executive as well as the law makers.
27. We find it,
however, difficult to
give a positive
direction to
constitute an
independent CSB at
the Centre and State Level,
without
executive
control, which Hota Committee has recommended to be statutory
in
nature,
that too, comprising
of persons from
outside the Government.
Petitioners
placed considerable reliance on the judgment of
this Court in
Prakash Singh
and Others v. Union of India (2006) 8 SCC
1 and urged
that
similar
directions be given to insulate, to at least some extent, the civil
servants from
political/executive
interference. Retired persons,
howsoever
eminent they may be, shall not guide the transfers and
postings,
disciplinary
action, suspension, reinstatement, etc.
of civil servants,
unless
supported by law enacted by the Parliament or the State Legislature.
28. CSB, consisting of high ranking in service
officers, who are experts
in their
respective fields, with the Cabinet Secretary
at the Centre
and
Chief Secretary
at the State level, could be a better alternative (till the
Parliament
enacts a law), to guide and advise the State
Government on all
service
matters, especially on transfers, postings and disciplinary action,
etc., though
their views also
could be overruled,
by the political
executive, but
by recording reasons, which would ensure
good governance,
transparency
and accountability in governmental functions.
Parliament can
also under
Article 309 of the Constitution
enact a Civil
Service Act,
setting up a
CSB, which can
guide and advice
the political executive
transfer and
postings, disciplinary action, etc. CSB
consisting of experts
in various
fields like administration, management,
science, technology,
could bring
in more professionalism, expertise
and efficiency in
governmental
functioning.
29. We, therefore, direct the Centre, State
Governments and the
Union
Territories to
constitute such Boards with high
ranking serving officers,
who are
specialists in their respective fields, within
a period of
three
months, if not
already constituted, till the Parliament brings in a
proper
legislation in
setting up CSB.
30. We notice, at present the civil servants are
not having stability of
tenure,
particularly in the State Governments where transfers and
postings
are made
frequently, at the whims and fancies
of the executive
head for
political and
other considerations and
not in public
interest. The
necessity of
minimum tenure has been endorsed and implemented by the
Union
Government. In
fact, we notice,
almost 13 States
have accepted the
necessity of a
minimum tenure for civil servants.
Fixed minimum tenure
would not only
enable the civil servants
to achieve their
professional
targets, but
also help them to function as effective instruments of
public
policy.
Repeated shuffling/transfer of the officers is deleterious to
good
governance. Minimum
assured service tenure
ensures efficient service
delivery and
also increased efficiency. They can also
prioritize various
social and economic
measures intended to
implement for the
poor and
marginalized
sections of the society.
31. We,
therefore, direct the
Union State Governments
and Union
Territories to
issue appropriate directions to secure providing of
minimum
tenure of service
to various civil servants,
within a period
of three
months.
32. We have extensively referred
to the recommendations of
the Hota
Committee, 2004
and Santhanam Committee
Report and those
reports have
highlighted
the necessity of
recording instructions and
directions by
public
servants. We notice that much of the
deterioration of the standards
of probity
and accountability with
the civil servants
is due to the
political
influence or persons purporting to
represent those who
are in
authority. Santhanam
Committee on Prevention
of Corruption, 1962
has
recommended
that there should be a system of keeping some
sort of records
in such
situations. Rule 3(3)(iii)
of the All
India Service Rules
specifically requires
that all orders
from superior officers
shall
ordinarily be
in writing. Where in exceptional circumstances, action
has
to be taken on
the basis of oral
directions, it is
mandatory for the
officer superior
to confirm the same in writing.
The civil servant,
in
turn, who has
received such information, is required
to seek confirmation
of the
directions in writing as early as possible and it is the duty of the
officer
superior to confirm the direction in writing.
33. We are of the view that the civil servants
cannot function on the
basis of verbal
or oral instructions, orders, suggestions,
proposals, etc.
and they must
also be protected against wrongful
and arbitrary pressure
exerted by the
administrative superiors, political executive,
business and
other vested
interests. Further, civil servants
shall also not have
any
vested
interests. Resultantly, there must be
some records to
demonstrate
how the civil
servant has acted, if the decision is not his, but if
he is
acting on
the oral directions,
instructions, he should
record such
directions in
the file. If the civil servant is
acting on oral directions
or dictation of
anybody, he will be taking a risk, because he
cannot later
take up the
stand, the decision was in fact not
his own. Recording
of
instructions, directions
is, therefore, necessary
for fixing
responsibility and
ensure accountability in the functioning
of civil
servants and to
uphold institutional integrity.
RTI Act and
Civil Servants
34. Democracy
requires an informed
citizenry and transparency of
information. Right to Information Act, 2005 (RTI Act)
recognizes the right
of the citizen
to secure access to information under the control of
public
authority, in
order to
promote transparency and
accountability in the
working of
every public authority. Section 3 of
the Act confers right to
information to
all citizens and a corresponding obligation under Section
4
on every public
authority to maintain the records so
that the information
sought for can
be provided. Oral and verbal
instructions, if not recorded,
could not be
provided. By acting on oral
directions, not recording
the
same, the
rights guaranteed to the citizens under the Right to
Information
Act, could be
defeated. The practice of giving oral
directions/instructions
by the
administrative superiors, political executive etc. would defeat
the
object and
purpose of RTI Act and
would give room
for favoritism and
corruption.
35. We, therefore, direct all the State
Governments and Union Territories
to issue
directions like Rule 3(3) of the
All India Services
(Conduct)
Rules, 1968, in
their respective States and Union Territories which will be
carried out
within three months from today.
36. The Writ Petitions are,
accordingly, disposed of
with the above
directions.
...……………………………..J.
(K.S. Radhakrishnan)
………………………………..J.
(Pinaki
Chandra Ghose)
New Delhi,
October 31,
2013.
